All For Elena: Obama makes pick, and storylines get prepped

By Jonathan Blakely

May 10, 2010 7:42am

By Rick Klein: And so it begins, again and anew, with everything different, but more or less the same. President Obama makes his selection of Elena Kagan for the Supreme Court official at 10 am ET Monday — thus concluding the period of time where the White House holds ownership over the all-important narrative. Supreme Court confirmation battles have become storytelling contests in recent decades. Neither side wants to, or will, give up the chance to tell its own story — and the nominee him- or herself is only a bit player in many of these scripts. The first chapter belongs to Kagan herself — she’d be the third woman on this court, the first justice named in nearly 40 years never to have been a judge, a legal whiz without a reputation as an ideologue, respected and liked by prominent lawyers and judges on both sides of the political divide. As for the man making the decision: This is a choice that leans toward caution, from a president who knows full well there are enough other big fights out there than to see the need to pick a new one. Yet Kagan will find herself wrapped up in the volatile politics of the moment: raging debates over the roles of the courts and the entire federal government; passion over Obama’s agenda, particularly against it; and just a bit of frustration nagging at the president from his left. In the bigger picture — will she become a justice? — this is an environment where 59 votes are almost certainly plenty. It’s also an environment where one of the 41 on the other side just found out he’s not coming back, for reasons that don’t encourage accommodating anything the president wants to do these days. Republicans enter the process realistic about their numbers and their prospects of blocking an appointment. But stories can be enjoyable even if you know the ending in advance. An important part of the story: “Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school. Activists on the right have attacked her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy,” The New York Times’ Peter Baker and Jeff Zeleny report. “Kagan is considered one of the finest legal scholars in the country, dazzling both fellow liberal and conservative friends with her intellectual and analytical prowess but also her ability to find consensus among ideological opposites,” ABC’s George Stephanopoulos and Ariane de Vogue report. “She would be the only justice on the bench, however, who has never served as a lower court judge. The choice reflects the president's desire to find a candidate outside the so-called ‘judicial monastery’ who has the intellectual heft to hold her own against more conservative justices and perhaps sway wavering justices to her position on divisive issues.” “Perhaps most significantly for Obama's legal legacy, Kagan, who just turned 50, would be the youngest justice by five years. As such, Kagan's tenure could stretch for nearly four decades, deepening Obama's imprint on the nation's highest court,” USA Today’s Joan Biskupic writes. ABC’s Jake Tapper: “The president is said to be impressed with not only Kagan's intellect but: the trail-blazing career of the first woman to serve as Harvard Law School dean and the first woman confirmed to serve as Solicitor General; Kagan's understanding of how the law impacts real people; the daughter of a tenant lawyer and a teacher, Kagan is far from the ‘judicial monastery,’ having never served as a judge; Her reputation for having been able to forge consensus and make conservatives feel welcome at Harvard Law.” Former White House counsel Greg Craig, on “Good Morning America” Monday: “She’s a solid, hard-working, intelligent, really smart lawyer who has had an extraordinary amount of experience in the law, even though she hasn’t been a judge…. Politically, she’s also mainstream as they get.” “You don’t have to have judicial experience to be a highly qualified candidate,” Craig added. She’s never been a judge, but there’s a story behind that, too… “Elena Kagan was 39 when President Bill Clinton nominated her for a seat on the U.S. Court of Appeals for the D.C. Circuit, sometimes referred to as the second most important court in the land. The Republican-controlled Senate never brought her nomination for a vote before Clinton's presidency expired,” Robert Barnes reports in The Washington Post. “As solicitor general, she has argued some of the most important constitutional challenges to congressional actions. Despite the lack of experience, she has from the beginning displayed a confident, at times conversational, style. She has stood up to tough questioning from the justices, matched their challenges and fared better with some than others,” Barnes writes. Your Harvard story: “She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Supreme Court Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking,” Katharine Q. Seelye, Lisa W. Foderaro, and Sheryl Gay Stolberg report in The New York Times. The choice “signals a desire to dodge a major showdown with Republicans, and she drew praise from GOP legal luminaries such as Ted Olson and Ken Starr when Obama named her as solicitor general last year,” Politico’s Josh Gerstein writes. “But there could still be a substantial culture war dust-up over her actions at Harvard to exclude military recruiters because of the ban on gays in the armed services. Conservatives have indicated that one line of argument against Kagan is that her tireless efforts against the military recruiters shows Kagan is more activist and advocate than fair-minded judge.”  Could the bigger problems be on the left? “The United States military is not Procter and Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country,” Peter Beinart writes at The Daily Beast. “You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.” “That is the risk in Obama's selection of Kagan: no one is sure of her views on key issues,” Erwin Chemerinsky of the School of Law at the University of California at Irvine writes, at The Washington Post. “No one knows whether Kagan will be as liberal as Stevens, more conservative or even more liberal. And no one will know until she's on the high court.” ABC’s Terry Moran, on “GMA” Monday: “Her views on most of the major controversial constitutional issues remain unknown. What is known is this is a woman driven to achieve in the law.” Or … on the right? David McIntosh, co-founder of the Federalist Society and former congressman from Indiana: “I’m deeply disappointed that President Obama has chosen to nominate an individual who has demonstrated a lack of adherence to the limits of the Constitution and a desire to utilize the court system to enact her beliefs of social engineering.” Manuel Miranda, of the conservative Third Branch Conference, to The Wall Street Journal: “I like her. … I think she would be possibly the best nomination that conservatives might want. But the bottom line is, from a nonpartisan nonideological point of view, she is not very well qualified for the court.” Tom Goldstein, at SCOTUS Blog: “The fact that she lacks a significant paper trail means that there is little basis on which to launch attacks against her, and no risk of a bruising Senate fight, much less a filibuster. And finally, one point is often overlooked: Kagan had some experience on Capitol Hill and significant experience in the Executive Branch, not only as an attorney in the White House counsel’s office, but also as an important official dealing with domestic affairs.” Andrew Cohen, at Politics Daily: “Kagan holds out just enough hope for conservatives so that they aren't likely to stand their ground with her nomination. And she teases liberals enough so that they'll be forced to back her despite their concerns that she's hiding some conservative streak within her.” Another story to tell: “The lack of judicial experience may be a negative in terms of the public's reaction to the pick. In the latest Washington Post-ABC News poll, seven in 10 Americans said service as a judge is a factor in favor of a nominee, the most to say so on any attribute tested in the poll,” The Washington Post’s Robert Barnes and Anne E. Kornblut report. Been there, done that? “When Elena Kagan was confirmed as Solicitor General last year, the overwhelming majority of Republicans — 31 — voted ‘no,’ primarily because of Kagan's decision to block military recruiters from Harvard Law School,” per ABC’s Jonathan Karl. “But the ‘yes’ votes included two conservatives on the Judiciary Committee: Jon Kyl and Orrin Hatch. … Among the Republicans who voted ‘no’ — Arlen Specter.” One quote vying to become the new “wise Latina”: Kagan called Senate confirmation hearings a “vapid and hollow charade,” ABC’s Ariane de Vogue reports. “In 1995, after spending time as a staff lawyer on the judiciary committee during the nomination of Justice Ruth Bader Ginsburg, Kagan made clear her frustrations: ‘When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.’ ” Here’s guessing she won’t want to quarrel with this precedent: “Not since Bork,” Kagan said, “has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy.” She didn’t save Major League Baseball, but: “She's a slugger. While at the University of Chicago Law School, Kagan played on a 16-inch softball team,” Lynn Sweet writes at the Chicago Sun-Times (and has the photos to prove it). “Fielders do not wear gloves and the ‘Clincher,’ before it turns to mush is a finger breaker.” The Daily Princetonian has archived news stories and editorials from her time at Princeton, where she was editorial chairman of the Prince. (This makes three Tigers in a row named to the high court.) From the rest of the wide world… a big shift after a big scare: “Attorney General Eric Holder said that Congress should ‘give serious consideration’ to updating the Miranda warning which requires law enforcement officials to inform suspects of their rights – including the right to remain silent,” ABC’s Jake Tapper reports. “In an interview on ‘This Week,’ Holder said that the U.S. needs to exam whether the current rules regarding Miranda warnings give law enforcement agents the ‘necessary flexibility’ when dealing with terrorism cases.” “If we are going to have a system that is capable of dealing, in a public safety context, with this new threat,” Holder said, “I think we have to give serious consideration to at least modifying that public safety exception” of Miranda warnings. Charlie Savage, in The New York Times: “The proposal to ask Congress to loosen the Miranda rule comes against the backdrop of criticism by Republicans who have argued that terrorism suspects — including United States citizens like Faisal Shahzad, the suspect in the Times Square case — should be imprisoned and interrogated as military detainees, rather than handled as ordinary criminal defendants. For months, the administration has defended the criminal justice system as strong enough to handle terrorism cases. Mr. Holder acknowledged the abrupt shift of tone.” As for the attempted attack: “We’ve now developed evidence that shows that the Pakistani Taliban was behind the attack,” Holder told Tapper on “This Week.” Picking up the pieces from Utah, as the first (and no, not the last) incumbent to fall in 2010 sees his career ended by tea party energy and organizing. “The weekend ouster of Sen. Bob Bennett, a three-term Utah Republican, represents a triumph for the ‘Tea Party’ movement and a warning for other incumbents facing ideological litmus tests this month,” USA Today’s Kathy Kiely reports. He can’t run as an independent now, but a write-in candidacy is a possibility: “We'll see what the future may bring. When I have anything to say about that, you'll be the second to know,” Bennett told reporters after being bounced on Saturday, per the Deseret News. “Bennett's loss to two Tea Party candidates, former assistant U.S. Attorney Mike Lee and businessman Tim Bridgewater, sends a warning signal to other GOP incumbents in a year when an anti-Washington, pro-fiscally conservative current is running strong among Republicans,” ABC’s Kristina Wong and Rachel Martin report. “The Tea Party's next big political fight will take place May 18 in Kentucky's Republican Senate primary.” In Pennsylvania — getting really interesting, really fast: It’s Sestak 46, Specter 42 in the Muhlenberg College tracking poll. (Sen. Arlen Specter, D-Pa., had a six-point edge a week earlier.)  Intra-party rumblings worth watching…. “House Democrats are worried about jobs ¬- both for the country and themselves. And they blame President Barack Obama,” Roll Call’s Jennifer Bendery writes. Rep. Peter DeFazio, D-Ore.: “We were told we would focus like a laser after December. Well, we haven’t exactly been focused like a laser on jobs and I have seen no movement, particularly on the part of the Obama administration, on the transportation bill.” On some of the created jobs that have been touted: “Those are fantasy jobs. Those aren’t real jobs.” And when is credit due? “President Obama made another effort last week to project fiscal discipline — and reminded Congressional Democrats why he sometimes exasperates them. Amid heightened public concern over spending, the White House disclosed that Mr. Obama wanted increased authority to strip wasteful projects from spending bills,” The New York Times’ John Harwood writes. Rep. Chris Van Hollen, D-Md.: “Congress is working to try and rein in spending — how about pointing that out? … the president has not done enough to draw those distinctions.”
The Kicker: “Humbled.” — Tweet from President Obama, after winning the Nobel Peace Prize, as now archived at the Library of Congress. “Pincer movement.” — Elena Kagan, on the confirmation hearings for Justice Ruth Bader Ginsburg.
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